ITEM NO.1A COURT NO.5 SECTION X (For judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS VERSUS

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1 ITEM NO.1A COURT NO.5 SECTION X (For judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Writ Petition (Civil) No. 671/2015 RAJBALA & ORS. Petitioner(s) VERSUS STATE OF HARYANA & ORS. Respondent(s) Date : 10/12/2015 This petition was called on for pronouncement of judgment today. For Petitioner(s) Ms. Kirti Singh,Adv. Mr. Pukhrambam Ramesh Kumar,Adv. Mr. Abhey Narula,Adv. Mr. Sumit Kumar Vats,Adv. Mr. Vikramjit Mittal,Adv. Mr. Manav Kumar,Adv. Mr. Tara Narula,Adv. Proposed Intervenor(s) Ms. Indira Jaising,Sr.Adv. Ms. Anindita Pujari,Adv. Ms. Meher Dev,Adv. Mr. Rohan Kothari,Adv. For Respondent(s) Mr. Mukul Rohtagi,A.G. Mr. B. K. Satija,AAG,Haryana Mr. Alok Sangwan,AAG Mr. Anil Grover,AAG Mr. Amit Kumar,AAG Mr. Rakesh Kumar Mudgil,AAG,Haryana Dr. Monika Gusain,Adv. Mr. Birender Singh,Adv. Mr. Arun Kumar,Adv. Hon'ble Mr. Justice J. Chelameswar pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Abhay Manohar Sapre. Hon'ble Mr. Justice Abhay Manohar Sapre also pronounced separate but concurring judgment. The writ petition is dismissed in terms of the two signed reportable judgments. [O.P. SHARMA] [INDU BALA KAPUR] AR-cum-PS COURT MASTER (Two signed reportable judgments are placed on the file) 1

2 Reportable IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 671 OF 2015 Rajbala & Others Petitioners Versus State of Haryana & Others Respondents J U D G M E N T Chelameswar, J. 1. The challenge is to the constitutionality of the Haryana Panchayati Raj (Amendment) Act, 2015 (Act 8 of 2015), hereinafter referred to as the IMPUGNED ACT. 2. Even prior to advent of the Constitution of India under the Government of India Act, 1935 certain local bodies with elected representatives were functioning. Such local bodies did not, however, have constitutional status. They owed their existence, constitution and functioning to statutes and had been subject to the overall control of provincial governments. 2

3 3. Article 40 of the Constitution mandates- 40. Organisation of village panchayats - The State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self government. To effectuate such obligation of the State, Constitution authorised (even prior to the 73 rd Amendment) State Legislatures under Article 246(3) read with Entry 5 of List II to make laws with respect to; 5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. Laws have been made from time to time by State Legislatures establishing a three-tier Panchayat system by 1980 s. It was felt desirable that local bodies be given constitutional status and the basic norms regarding the establishment and administration of a three-tier Panchayati Raj institutions be provided under the Constitution. Hence, the 73 rd Amendment of the Constitution by which Part IX was inserted with effect from Under Article 243B 1, it is stipulated that there shall be constituted in every State, Panchayats at the village, intermediate and 1 Article 243B. Constitution of Panchayats (1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part (2) Notwithstanding anything in clause ( 1 ), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs 3

4 district levels (hereinafter collectively referred to as PANCHAYATS) in accordance with provisions of Part IX. PANCHAYAT is defined under Article 243(d) The composition of Panchayats is to be determined by the legislature of the concerned State by law subject of course to various stipulations contained in Part IX of the Constitution; such as reservations of seats in favour of scheduled castes and scheduled tribes etc. The duration of the Panchayat is fixed under Article 243E for a maximum of five years subject to dissolution in accordance with law dealing with the subject. There is a further stipulation under Article 243E that election to constitute a Panchayat be completed before the expiry of its tenure The broad contours of the powers and functions of Panchayats are also spelt out in Article 243G and 243H. Such powers and responsibilities are to be structured by legislation of the State. The 2 Article 243(d). Panchayat means an institution (by whatever name called) of self- government constituted under article 243B, for the rural areas; 3 Article 243E. Duration of Panchayats, etc - (1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause ( 1 ). (3) An election to constitute a Panchayat shall be completed- (a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period. (4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under clause (1) had it not been so dissolved. 4

5 establishment of an autonomous constitutional body to superintend the election process to the PANCHAYATS is stipulated under Article 243K. 7. The Haryana Panchayati Raj Act, 1994 (hereinafter referred to as THE ACT ) was enacted to bring the then existing law governing PANCHAYATS in the State in tune with the Constitution as amended by the 73 rd amendment. As required under Article 243B 4, a three tier Panchayat system at the Village, Samiti and District level is established under THE ACT with bodies known as Gram Panchayat, Panchayat Samiti and Zila Parishad. Part V Chapter XX of THE ACT deals with provisions relating to elections to the PANCHAYATS. 8. Section 162 of THE ACT stipulates that PANCHAYAT areas shall be divided into wards Section declares that every person entitled to be registered as voter in the relevant part of the electoral rolls of the Assembly is entitled to be registered as a voter for the purpose of PANCHAYATS elections. 4 See Footnote 1 5 Section 162. Electoral division: Every sabha area, block and district shall be divided into wards as referred in sections 8(3), 58(2) and 119(b) of this Act. 6 Section 165. Persons qualified to be registered as voters.- Every person who is entitled to be registered as voter in the relevant part of the electoral rolls of the Assembly under the Representation of People Act, 1950, shall be entitled to be registered as a voter in the list of voters for the electoral division to be prepared under section

6 10. Section 175 mandates that persons suffering from any one of the disqualifications mentioned in Section 175 are neither eligible to contest the election to any one of the offices under the Act nor can they continue in office if they incur any one of the disqualifications, after having been elected. The categories so specified runs into a long list, such as, convicts of certain categories of offences, adjudicated insolvent, people of unsound mind, people who hold any office of profit under any one of the three categories of Panchayats etc. 11. By the IMPUGNED ACT 7, five more categories of persons are rendered incapable of contesting elections for any one of the elected offices under THE ACT. These categories are: (i) persons against whom charges are framed in criminal cases for offences punishable with imprisonment for not less than ten years, (ii) persons who fail to pay arrears, if any, owed by them to either a Primary Agricultural Cooperative Society or District Central Cooperative Bank or District Primary Agricultural Rural Development Bank, (iii) persons who have arrears of electricity bills, (iv) persons who do not possess the specified educational qualification and lastly (v) persons not having a functional toilet at their place of residence. 12. On , the second respondent (State Election Commission) 7 Initially, an ordinance known as Haryana Panchayat Raj (Amendment) Ordinance, 2015 was promulgated on now replaced by the Impugned Act which was passed by the Haryana Legislature on and subsequently notified. 6

7 issued a notification specifying the election schedule for the PANCHAYATS of Haryana. 13. The three petitioners herein claim to be political activists interested in contesting the local body elections, but would now be disabled to contest as none of them possess the requisite educational qualification. 14. The petitioners challenge the IMPUGNED ACT principally on the ground that the enactment is violative of Article 14 of the Constitution. It is argued on behalf of the petitioners that (i) the impugned provisions are wholly unreasonable and arbitrary and therefore violative of Article 14 of the Constitution. They create unreasonable restrictions on the constitutional right of voters to contest elections under the ACT 8 ; (ii) they create an artificial classification among voters (by demanding the existence of certain criteria which have no reasonable nexus to the object sought to be achieved by the ACT), an otherwise homogenous group of people who are entitled to participate in the democratic process under the Constitution at the grass-roots level; and (iii) the classification sought to be made has no legitimate 8 That the Respondents have passed the impugned Act and Notification without any consideration, regard or appreciation for the empirical data pertaining to the number of people that would be prevented from contesting Panchayati Raj elections by its actions. That the Respondents actions have the effect of disqualifying 56.80% of the population who would need to be matriculation pass (69,86,197) and 79.76% of the population who would need to be middle-pass (10,83,052), in order to contest elections. That by its actions, the Respondents have prevented an overwhelming majority of the population from contesting elections, in contravention of Article 14, without any regard for Constitutional principles. [See: Ground G of the Petition] 7

8 purpose which can be achieved Though not very specifically pleaded in the writ petition, elaborate submissions are made on the questions (i) whether the stipulations contained in the impugned amendment are in the nature of prescription of qualifications or disqualifications for contesting the elections under THE ACT; (ii) if the impugned stipulations are in the nature of a prescription of qualifications whether the State legislature is competent to make such stipulations consistent with the scheme of the Constitution, as can be culled out from the language of Article 243F and other related provisions of the Constitution. 16. On the other hand, the learned Attorney General appearing for the respondents submitted that nobody has a fundamental right to contest an election under our Constitution and it is really not necessary in the present case to decide whether the right to contest an election to the PANCHAYATS is a constitutional right. He argued that even assuming for the sake of argument that there is a constitutional right to contest an election to the PANCHAYATS, such right is expressly made subject to qualifications/disqualifications contemplated under Article 243F which authorises the State 9 no reasonable nexus between the impugned classifications set out in the impugned Act, and the object of the Act. That the imposition of disqualifications on the grounds laid down by the impugned Act are entirely irrelevant to, and have no bearing whatsoever on the ability of potential candidates to effectively discharge their duties and perform their functions as members/heads of Panchayati Raj institutions. [See: Ground A of the Petition] 8

9 legislature to prescribe disqualifications for contesting election to any PANCHAYAT. Prescription of qualifications to contest an election based on criteria such as minimal educational accomplishment etc. cannot be said to be either arbitrary or irrelevant having regard to the nature of duties required to be discharged by persons elected to any one of the offices under THE ACT. 17. The learned Attorney General also submitted that the legislature best comprehends the needs of the society 10. The decision to prescribe such a qualification is in the realm of wisdom of the legislature 11 and the Courts do not sit in review of such wisdom on the ground that the legislative decision is arbitrary Answers to questions raised by the petitioners in this writ petition, in our opinion, inevitably depend upon answer to the question whether right to vote or the right to contest an election to any of the constitutional bodies is a constitutional or a statutory right, since the extent to which curtailment or regulation of such right is permissible depends upon the nature of the right. 19. Prior to the 73 rd Amendment of the Constitution, the Constitution contemplated elections to the office of the President, Vice-President, 10 Maru Ram v. Union of India & Others, (1981) 1 SCC In Re: The Kerala Education Bill, 1957, (1959) SCR State of A.P. & Others v. Mcdowell & Co. & Others, (1996) 3 SCC 709 [See para 43] 9

10 the two Houses of the Parliament known as Rajya Sabha and Lok Sabha and the State Legislatures. The Legislatures in certain States are bicameral. They are known as Legislative Assembly and Legislative Council while other States are unicameral (only the legislative Assembly). After the 73 rd and 74 th Amendments of the Constitution, PANCHAYATS and Municipal bodies specified under Parts IX & IXA of the Constitution respectively were added to the above-mentioned. 20. The nature of the right to vote at or the right to contest to any one of the abovementioned elections has been a vexed question. 21. A bench of three judges (M.B. Shah, P. Venkatarama Reddi and D.M. Dharamadhikari, JJ.) of this Court in People s Union for Civil Liberties (PUCL) & Another v. Union of India & Another, (2003) 4 SCC 399 considered the validity of the Representation of the People (Third Amendment) Act, 2002 (4 of 2002). By the said amendment, a candidate contesting an election (to which the Representation of the People Act, 1951 applies) is required to furnish certain information at the time of filing of nomination. In that context, Justice P.V. Reddi examined in some detail the nature of the right to vote in the background of the observations made in two earlier decisions of this Court, in N.P. Ponnuswami v. Returning Officer, Namakkal 10

11 Constituency, Namakkal, Salem, AIR 1952 SC 64 and Jyoti Basu & Others v. Debi Ghosal & Others, (1982) 1 SCC 691 and recorded the categoric conclusion that the right to vote if not a fundamental right is certainly a constitutional right and it is not very accurate to describe it as a statutory right, pure and simple. The learned Judge recorded nine of his conclusions in para 123. The 2 nd conclusion reads as follows: (2) The right to vote at the elections to the House of the People or Legislative Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter. A conclusion with which Justice Dharamadhikari expressly agreed 13. The third learned judge Justice M.B. Shah recorded no disagreement. 22. Following the PUCL case, one of us held in Desiya Murpokku Dravida Kazhagam (DMDK) & Another v. Election Commission of India, (2012) 7 SCC 340: every citizen of this country has a constitutional right both to elect and also be elected to any one of the legislative bodies created by the Constitution.. 14 No doubt, it was a 13 Para 131. With these words, I agree with Conclusions (A) to (E) in the opinion of Brother Shah, J. and Conclusions (1), (2), (4), (5), (6), (7) and (9) in the opinion of Brother P.V. Reddi, J. 14 Para 101. In my opinion, therefore, subject to the fulfillment of the various conditions stipulated in the Constitution or by an appropriate law made in that behalf, every citizen of this country has a constitutional right both to elect and also be elected to any one of the legislative bodies created by the Constitution the straight conclusion of Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, that every Indian has a right to elect and be elected subject to statutory regulation, which rights can be curtailed only by a law made by the appropriate legislation, that too on grounds specified under Article 326 only. For complete discussion - see paras 86 to

12 part of the dissenting opinion. It was a case dealing with allotment of election symbols and the right of a political party to secure. an election symbol on a permanent basis irrespective of its participation and performance judged by the vote share it commanded at any election. 15 Though, the majority held that a political party cannot claim an election symbol on a permanent basis unless it satisfied norms stipulated under the symbols order issued by the Election Commission of India. Their Lordships did not record any disagreement regarding the conclusion that the right to participate in electoral process, either as a voter or as a candidate is a constitutional right. 23. Therefore, in our opinion, the question whether the right to vote at an election for either the Lok Sabha or the Legislative Assembly is a statutory right or a constitutional right is no more res integra and stands concluded by the abovementioned judgments, in PUCL and DMDK cases (supra). 24. However, the learned Attorney General brought to our notice certain observations in some of the judgments to the effect that rights to vote and contest elections are purely statutory. The context and 15 Para 57. All these petitions filed either under Article 32 or under Article 136 raise certain common and substantial questions of law as to the interpretation of the Constitution. The lis, essentially, is between the Election Commission of India, a creature of the Constitution under Article 324, on the one hand and various bodies claiming to be political parties and some of their functionaries, on the other hand. The essence of the dispute is whether a political party is entitled for the allotment of an election symbol on a permanent basis irrespective of its participation and performance judged by the vote share it commanded at any election. 12

13 the precedentiary value of those judgments need examination. 25. In Shyamdeo Prasad Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46, a Bench of three learned Judges observed: 20. It has to be remembered that right to contest an election, a right to vote and a right to object to an ineligible person exercising right to vote are all rights and obligations created by statute. It was a case dealing with election to the Legislative Council of Bihar from the Patna Teacher s Constituency. The limited question before this Court was whether the High Court in an election petition could examine the legality of the inclusion of certain names in the electoral roll? We are of the opinion that the said judgment leaves open more questions than it answers. The correctness of the judgment requires a more closer scrutiny in an appropriate case for more than one reason. One of them is that the inquiry in the said judgment commenced with the examination of Article 326 which has no application to elections to the Legislative Councils. The text of Article 326 is express that it only deals with the adult suffrage with respect to Lok Sabha and Legislative Assemblies. In our opinion the statement (extracted earlier from para 20 of the said judgment) is made without analysis of relevant provisions of the Constitution apart from being unnecessary in the context of the controversy before the Court and is further in conflict with the later judgment in PUCL s case. 13

14 26. In K. Krishna Murthy (Dr.) & Others v. Union of India & Another, (2010) 7 SCC 202 para 77, speaking for a Constitution Bench of this Court, Balakrishnan, CJ. recorded that: it is a well-settled principle in Indian Law, that the right to vote and contest elections does not have the status of fundamental rights. Instead, they are in the nature of legal rights.. For recording such conclusion reliance was placed on certain observations made in an earlier judgment (decided by a bench of two judges) of this Court in Mohan Lal Tripathi v. District Magistrate, Rai Bareilly & Others, (1992) 4 SCC The challenge before this Court in K Krishna Murthy case was regarding the legality of Article 243D(6) and Article 243T(6) which enabled reservation of seats in favour of backward classes etc. 16 The challenge to the abovementioned provisions is that they are violative of principles such as equality, democracy and fraternity, which are part of the basic structure doctrine Para 12. However, the petitioners raised strong objections against the other aspects of the reservation policy contemplated under Articles 243-D and 243-T. Initially, they had assailed the reservation of seats in favour of women, which has been enabled by Articles 243-D(2) and (3) with respect to rural local bodies, and by Articles 243-T(2) and (3) with respect to urban local bodies. However, this challenge was given up during the course of the arguments before this Court and the thrust of the petitioner s arguments was directed towards the following two aspects: Firstly, objections were raised against Article 243-D(6) and Article 243-T(6) since they enable reservations of seats and chairperson posts in favour of backward classes, without any guidance on how to identify these beneficiaries and the quantum of reservation. Secondly, it was argued that the reservation of chairperson posts in the manner contemplated under Articles 243-D(4) and 243-T(4) is unconstitutional, irrespective of whether these reservations are implemented on a rotational basis and irrespective of whether the beneficiaries are SCs, STs and women. The objection was directed against the very principle of reserving chairperson posts in elected local bodies. 17 See Para 13 of K. Krishna Murthy case 14

15 28. The decision in PUCL case was unfortunately not noticed by this Court while deciding K. Krishna Murthy case. Further a specific request to reconsider the precedents wherein the rights of political participation have been characterized as statutory rights was not given any consideration 18. Their Lordships also failed to notice that the observations made in Mohan Lal case, prior to the 74 th Amendment of the Constitution regarding the nature of the electoral rights with regard to the elections to the Municipal bodies are wholly inapplicable and without examining provisions of the Constitution as amended by the 74 th Amendment. 29. They relied upon observation 19 from Mohan Lal case, in our 18 Para 79. The petitioners have asked us to reconsider the precedents wherein the rights of political participation have been characterised as statutory rights. It has been argued that in view of the standard of reasonableness, fairness and non-discrimination required of governmental action under Article 21 of the Constitution, there is a case for invalidating the restrictions that have been placed on these rights as a consequence of reservations in local self-government. We do not agree with this contention. Para 80. In this case, we are dealing with an affirmative action measure and hence the test of proportionality is a far more appropriate standard for exercising judicial review. It cannot be denied that the reservation of chairperson posts in favour of candidates belonging to the Scheduled Castes, Scheduled Tribes and women does restrict the rights of political participation of persons from the unreserved categories to a certain extent. However, we feel that the test of reasonable classification is met in view of the legitimate governmental objective of safeguarding the interests of weaker sections by ensuring their adequate representation as well as empowerment in local self-government institutions. The position has been eloquently explained in the respondents submissions, wherein it has been stated that the asymmetries of power require that the chairperson should belong to the disadvantaged community so that the agenda of such panchayats is not hijacked for majoritarian reasons. (Cited from the submissions on behalf of the State of Bihar, p. 49.) 19 Para 2. Democracy is a concept, a political philosophy, an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a fundamental right nor a common law right but a special right created by the statutes, or a political right or privilege and not a natural, absolute or vested right. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. Right to remove an elected representative, too, must stem out of the statute as in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers. Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. 15

16 opinion, are too sweeping and made without any appropriate analysis of law. The limited issue before this Court in Mohan Lal case was the legality of a no confidence motion moved against the President of Rai Bareilly Municipal Board who was elected directly by voters of the municipality. The U.P. Municipalities Act provided for removal of the President so elected through the process of a no confidence motion moved by the Councilors who themselves, in turn, are elected representatives of the territorial divisions of the municipality. The question whether the right to vote in or contest an election is a constitutional or statutory right was not in issue. Mohan Lal case was dealing with provisions of the U.P. Municipalities Act, 1916 as amended by Act 19 of 1990, i.e. prior to 74 th Amendment of the Constitution 20. Therefore, the right to vote and contest at an election for a municipality was certainly a statutory right by the date of the judgment 21 in Mohan Lal case. 30. Again in Krishnamoorthy v. Sivakumar & Others, (2015) 3 SCC 467, this court observed that the right to contest an election is a plain and simple statutory right We are of the opinion that observations referred to above are in 20 Introduced Part IX-A of the Constitution dealing with Municipalities w.e.f The judgment of Allahabad High Court is dated and the appeal in this Court is decided on Para 60. The purpose of referring to the same is to remind one that the right to contest in an election is a plain and simple statutory right 16

17 conflict with the decisions of this Court in PUCL case and DMDK case, which were rendered after an elaborate discussion of the scheme of the Constitution. We are of the clear opinion that the Constitution recognises the distinction between the Right to Vote at various elections contemplated under the Constitution and the Right to Contest at such elections. There are various other electoral rights recognised or created by the statutes and the Representation of the People Act, 1951 recognises the same 23. Right to Vote 32. Prior to the 73 rd and 74 th amendments, the Constitution contemplated elections to be held to offices of the President and the Vice President under Articles 54 and 66 respectively. It also contemplated elections to the two chambers of Parliament i.e. Rajya Sabha and Lok Sabha. A small fraction of the Members of the Rajya Sabha are nominated by the President while other Members are elected 24. In the case of the Lok Sabha, subject to stipulations 23 Section 123(2). Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right: 24 Article 80. Composition of the Council of States.- (1) The Council of States shall consist of (a) twelve members to be nominated by the President in accordance with the provisions of clause (3); and (b) not more than two hundred and thirty eight representatives of the States and of the Union territories. (2) The allocation of seats in the Council of States to be filled by representatives of the States and of the Union territories shall be in accordance with the provisions in that behalf contained in the fourth Schedule. (3) The members to be nominated by the President under sub clause (a) of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely: Literature, science, art and social service. (4) The representatives of each State in the council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of 17

18 contained in Article 331 providing for nomination of not more than two Members belonging to the Anglo Indian Community all other Members are required to be elected. In the case of the Legislative Council, in States where they exist, a fraction of the Members of the Council are required to be nominated by the Governor under Article 171(2)(e) and the rest of the Members are to be elected from various constituencies specified under Article 171 (3)(a), (b), (c), (d). Legislative Assemblies shall consist of only elected members subject to provisions for nomination contained in Article 333 in favour of the Anglo Indian Community. 33. The right to vote of every citizen at an election either to the Lok Sabha or to the Legislative Assembly is recognised under Articles 325 and 326 subject to limitations (qualifications and disqualifications) prescribed by or under the Constitution. On the other hand the right to vote at an election either to the Rajya Sabha or to the Legislative Council of a State is confined only to Members of the Electoral Colleges specified under Article 80(4) & (5) and Article 171 (3)(a), (b), (c), (d) 25 respectively. In the case of election to the Rajya Sabha, the proportional representation by means of the single transferable vote. (5) The representatives of the Union Territories in the council of States shall be chosen in such manner as Parliament may by law prescribe. 25 Article 171(3) Of the total number of members of the Legislative council of a State: (a) as nearly as may be, one third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify; (b) as nearly as may be, one twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed 18

19 Electoral College is confined to elected members of Legislative Assemblies of various States and representatives of Union Territories 26. In the case of the Legislative Council, the Electoral College is divided into four parts consisting of; (i) Members of various local bodies specified under Article 171 (3)(a); (ii) certain qualified graduates specified under Article 171 (3)(b); (iii) persons engaged in the occupation of teaching in certain qualified institutions described under Article 171 (3)(c); and (iv) Members of the Legislative Assembly of the concerned State. Interestingly, persons to be elected by the electors falling under any of the above-mentioned categories need not belong to that category, in other words, need not be a voter in that category 27. by or under any law made by Parliament as equivalent to that of a graduate of any such university; (c) as nearly as may be, one twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament; (d) as nearly as may be, one third shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly; (e) the remainder shall be nominated by the Governor in accordance with the provisions of clause (5) 26 Article 80(4). The representatives of each State in the council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. 27 G. Narayanaswami v. G. Pannerselvam & Others [(1972) 3 SCC 717] Para 14. Whatever may have been the opinions of Constitution-makers or of their advisers, whose views are cited in the judgment under appeal, it is not possible to say, on a perusal of Article 171 of the Constitution, that the Second Chambers set up in nine States in India were meant to incorporate the principle of what is known as functional or vocational representation which has been advocated by Guild-Socialist and Syndicalist Schools of Political Thought. Some of the observations quoted above, in the judgment under appeal itself, militate with the conclusions reached there. All that we can infer from our constitutional provisions is that additional representation or weightage was given to persons possessing special types of knowledge and experience by enabling them to elect their special representatives also for Legislative Councils. The concept of such representation does not carry with it, as a necessary consequence, the further notion that the representative must also possess the very qualifications of those he represents. 19

20 34. The Electoral College for election to the Office of the President consists of elected members of both Houses of Parliament and elected members of the Legislative Assemblies of the State while the Electoral College with respect to the Vice President is confined to Members of both Houses of Parliament. Right to Contest 35. The Constitution prescribes certain basic minimum qualifications and disqualifications to contest an election to any of the above mentioned offices or bodies. Insofar as election to the Office of the President and Vice President are concerned, they are contained under Articles 58 and 66 respectively. Insofar as Parliament and the State Legislatures are concerned, such qualifications are stipulated under Articles 84 and 173, and disqualifications under Articles 102 and 191 respectively. The Constitution also authorises Parliament to make laws prescribing both further qualifications and disqualifications. 36. Interestingly, insofar as elections to Office of the President and Vice President are concerned, the Constitution does not expressly authorise either Parliament or Legislative Assemblies of the State to prescribe any further qualifications or disqualifications to contest an election to either of these Offices. It stipulates only two conditions 20

21 which qualify a person to contest those Offices, they are - citizenship of the country and the minimum age of 35 years. Under Articles 58(1) (c) and 66(3)(c), it is further stipulated that a person who was otherwise eligible to contest for either of the above mentioned two Offices shall not be eligible unless he is qualified for election as a Member of the Lok Sabha or the Rajya Sabha respectively. 37. An examination of the scheme of these various Articles indicates that every person who is entitled to be a voter by virtue of the declaration contained under Article 326 is not automatically entitled to contest in any of the elections referred to above. Certain further restrictions are imposed on a voter s right to contest elections to each of the above mentioned bodies. These various provisions, by implication create a constitutional right to contest elections to these various constitutional offices and bodies. Such a conclusion is irresistible since there would be no requirement to prescribe constitutional limitations on a non existent constitutional right. 38. Articles 84 and 173 purport to stipulate qualifications for membership of Parliament and Legislatures of the State respectively. Articles 102 and 191 purport to deal with disqualifications for membership of the above mentioned two bodies respectively. All the four Articles authorise the Parliament to prescribe further 21

22 qualifications and disqualifications, as the case may be, with reference to the membership of Parliament and Legislatures of the State as the case may be. 39. The distinction between the expressions qualification and disqualification in the context of these four Articles is little intriguing. There is no clear indication in any one of these four Articles or in any other part of the Constitution as to what is the legal distinction between those two expressions. In common parlance, it is understood that a qualification or disqualification is the existence or absence of a particular state of affairs, which renders the achievement of a particular object either possible or impossible. Though there are two sets of Articles purporting to stipulate qualifications and disqualifications, there is neither any logical pattern in these sets of Articles nor any other indication which enables discernment of the legal difference between the two expressions. We reach such a conclusion because citizenship of India is expressly made a condition precedent under Articles 84 and 173 for membership of both Parliament and State Legislatures. Lack of citizenship is also expressly stipulated to be a disqualification for membership of either of the above mentioned bodies under Articles 102 and 191. In view of the stipulation under Articles 84 and citizenship is one of the 22

23 requisite qualifications for contesting election to either Parliament or the State Legislature, we do not see any reason nor is anything brought to our notice by learned counsel appearing on either side to again stipulate under the Articles 102 and 191 that lack of citizenship renders a person disqualified from contesting elections to those bodies. Learned counsel appearing on either side are also unanimously of the same opinion. We are, therefore, of the opinion that the distinction between qualifications and disqualifications is purely semantic We, therefore, proceed on the basis that, subject to restrictions mentioned above, every citizen has a constitutional right to elect and to be elected to either Parliament or the State legislatures. 41. Insofar as the Rajya Sabha and the Legislative Councils are concerned, such rights are subject to comparatively greater restrictions imposed by or under the Constitution. The right to vote at an election to the Lok Sabha or the Legislative Assembly can only 28 Manoj Narula v. Union of India, (2014) 9 SCC 1 Para 110. Article 84 of the Constitution negatively provides the qualification for membership of Parliament. This Article is quite simple and reads as follows: 84. Qualification for membership of Parliament A person shall not be qualified to be chosen to fill a seat in Parliament unless he (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Council of States, not less than thirty years of age, in the case of a seat in the House of the People, not less than twenty-five years of age; and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. 23

24 be subjected to restrictions specified in Article 326. It must be remembered that under Article 326 the authority to restrict the right to vote can be exercised by the appropriate legislature. The right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law made by the Parliament. 42. The next question is whether such constitutional rights exist in the context of elections to the PANCHAYATS? Having regard to the scheme of Part IX of the Constitution, the purpose 29 for which Part IX came to be introduced in the Constitution by way of an amendment, we do not see any reason to take a different view. 43. On the other hand, this Court in Javed & Others v. State of Haryana & Others, (2003) 8 SCC 369, held that right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right. 29 Bhanumati & Others v. State of U.P., (2010) 12 SCC 1 Para 33. The Panchayati Raj institutions structured under the said amendment are meant to initiate changes so that the rural feudal oligarchy lose their ascendancy in village affairs and the voiceless masses, who have been rather amorphous, may realise their growing strength. Unfortunately, effect of these changes by way of constitutional amendment has not been fully realised in the semi-feudal set-up of Indian politics in which still voice of reason is drowned in an uneven conflict with the mythology of individual infallibility and omniscience. Despite high ideals of constitutional philosophy, rationality in our polity is still subordinated to political exhibitionism, intellectual timidity and petty manipulation. The Seventy-third Amendment of the Constitution is addressed to remedy these evils. 24

25 44. We need to examine contours of the two rights, i.e. the right to vote (to elect) and the right to contest (to get elected) in the context of elections to PANCHAYATS. Part IX of the Constitution does not contain any express provision comparable to Article 326 nor does it contain any express provisions comparable to Article 84 and Article 173. The text of Article 326 does not cover electoral rights with respect to PANCHAYATS. Therefore, questions arise: i) Whether a non-citizen can become a voter or can contest and get elected for PANCHAYATS? ii) iii) In the absence of any express provision, what is the minimum age limit by which a person becomes entitled to a constitutional right either to become a voter or get elected to PANCHAYATS? Are there any constitutionally prescribed qualifications or disqualifications for the exercise of such rights? Questions No.(i) and (ii) do not arise on the facts of the present case. Therefore, we desist examination of these questions. 45. In contradiction to Article 326, Constitution does not contain any provision which stipulates that a person to be a voter at elections to PANCHAYAT is required to be either (i) a citizen of India or (ii) of any minimum age. Similarly, in the context of right to contest an election to PANCHAYATS, Part IX is silent regarding qualifications required of a candidate. All that the Constitution prescribes is disqualification for membership of PANCHAYATS: 25

26 243F. Disqualifications for membership. - (1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide. 46. It appears from the above, that any person who is disqualified by or under any law for the time being in force for the purposes of elections to the Legislatures of the State concerned is also disqualified for being a member of PANCHAYAT. In other words qualifications and disqualifications relevant for membership of the Legislature are equally made applicable by reference to the membership of PANCHAYATS. Though such qualifications and disqualifications could be stipulated only by Parliament with respect to the membership of the Legislature of a State, Article 243F authorises the concerned State Legislature also to stipulate disqualifications for being a member of PANCHAYAT. 47. The right to vote and right to contest at an election to a PANCHAYAT are constitutional rights subsequent to the introduction 26

27 of Part IX of the Constitution of India. Both the rights can be regulated/curtailed by the appropriate Legislature directly. Parliament can indirectly curtail only the right to contest by prescribing disqualifications for membership of the Legislature of a State. 48. It is a settled principle of law that curtailment of any right whether such a right emanates from common law, customary law or the Constitution can only be done by law made by an appropriate Legislative Body. Under the scheme of our Constitution, the appropriateness of the Legislative Body is determined on the basis of the nature of the rights sought to be curtailed or relevant and the competence of the Legislative Body to deal with the right having regard to the distribution of legislative powers between Parliament and State Legislatures. It is also the settled principle of law under our Constitution that every law made by any Legislative Body must be consistent with provisions of the Constitution. 49. It is in the abovementioned background of the constitutional scheme that questions raised in this writ petition are required to be examined. 50. Section 173(1) 30 of THE ACT stipulates that every person whose 30 Section 173. Persons qualified to vote and be elected. (1) Every person whose name is in the list of voters shall, unless disqualified under this Act or any other law for the time 27

28 name is in the list of voters shall be qualified to vote at the election of a member for the electoral division to which such list pertains unless he is otherwise disqualified. Persons who are qualified to be registered as voters and list of voters are dealt with under Sections 165 and 166, the details of which are not necessary for the present purpose. Under Section 173(2) 31 every person whose name is in the list of voters subject to a further condition that he has attained the age of 21 years is qualified to contest at an election to any PANCHAYAT unless such a person suffers from a disqualification prescribed by law. 51. Section 175 of THE ACT stipulates that No person shall be a Sarpanch 32 or a Panch 33 of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such, if he falls within the ambit of any of the clauses of Section 175. Section 175 reads as follows: Section 175. Disqualifications. (1) No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who (a) has, whether before or after the commencement of this Act, been convicted (i) of an offence under the Protection of Civil Rights Act, 1955 (Act 22 of 1955 ), unless a period of five years, or such lesser period as the Government may allow in any particular case, has elapsed since his conviction; or (ii) of any other offence and been sentenced to imprisonment for not less than six months, unless a period of five years, or such lesser period as the Government may allow in any particular case, has elapsed since his release; or being in force, be qualified to vote at the election of a Member for the electoral division to which such list pertains. 31 Section 173(2). Every person who has attained the age of twenty-one years and whose name is in the list of voters shall, unless disqualified under this Act or under any other law for the time being in force, be disqualified to be elected from any electoral division. 32 Section 2 (lvi) Sarpanch means a Sarpanch of Gram Panchayat elected under this Act. 33 Section 2 (xli) "Panch" means a member of a Gram Panchayat elected under this Act. 28

29 (aa) has not been convicted, but charges have been framed in a criminal case for an offence, punishable with imprisonment for not less than ten years; (b) (c) has been adjudged by a competent court to be of unsound mind; or has been adjudicated an insolvent and has not obtained his discharge; or (d) has been removed from any office held by him in a Gram Panchayat, Panchayat Samiti or Zila Parishad under any provision of this Act or in a Gram Panchayat, Panchayat Samiti or Zila Parishad before the commencement of this Act under the Punjab Gram Panchayat Act, 1952 and Punjab Panchayat Samiti Act, 1961, and a period of five years has not elapsed from the date of such removal, unless he has, by an order of the Government notified in the Official Gazette been relieved from the disqualifications arising on account of such removal from office; or (e) has been disqualified from holding office under any provision of this Act and the period for which he was so disqualified has not elapsed; or (f) holds any salaried office or office of profit in any Gram Panchayat, Panchayat Samiti, or Zila Parishad; or (g) has directly or indirectly, by himself or his partner any share or interest in any work done by order of the Gram Panchayat, Panchayat Samiti or Zila Parishad; (h) has directly or indirectly, by himself or, his partner share or interest in any transaction of money advanced or borrowed from any officer or servant or any Gram Panchayat; or (i) fails to pay any arrears of any kind due by him to the Gram Panchayat, Panchayat Samiti or Zila Parishad or any Gram Panchayat, Panchayat Samiti or Zila Parishad subordinate thereto or any sum recoverable from him in accordance with the Chapters and provisions of this Act, within three months after a special notice in accordance with the rules made in this behalf has been served upon him; (j) is servant of Government or a servant of any Local Authority; or (k) has voluntarily acquired the citizenship of a Foreign State or is under any acknowledgement of allegiance or adherence to a Foreign state; or (l) is disqualified under any other provision of this Act and the period for which he was so disqualified has not elapsed; or (m) is a tenant or lessee holding a lease under the Gram Panchayat, Panchayat Samiti or Zila Parishad or is in arrears of rent of any lease or tenancy held under the Gram Panchayat, Panchayat Samiti or Zila Parishad; or (n) is or has been during the period of one year preceding the date of election, in unauthorised possession of land or other immovable property belonging to the Gram Panchayat, Panchayat Samiti or Zila Parishad; or (o) being a Sarpanch or Panch or a member of Panchayat Samiti or a Zila Parishad has cash in hand in excess of that permitted under the rules and does not deposit the same along with interest at the rate of twenty-one percentum per year in pursuance of a general or special order of the prescribed authority within the time specified by it; or 29